Geller v. City of Baton Rouge et al

Filing 139

RULING AND ORDER granting in part and denying in part 137 Motion to Compel; denying 137 Motion for Attorney Fees. Signed by Magistrate Judge Erin Wilder-Doomes on 11/6/2019. (SWE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
MAX GELLER
CIVIL ACTION NO.
VERSUS
17-324-JWD-EWD
CITY OF BATON ROUGE, ET AL.
RULING AND ORDER ON MOTION TO COMPEL
Before the court is a Motion to Compel Discovery Responses from Sheriff Sid. J.
Gautreaux III and Motion for Award of Attorneys’ Fees (the “Motion to Compel”)1 filed by
plaintiff, Max Geller (“Plaintiff”). Defendant, Sid. J. Gautreaux, III, Sheriff of East Baton Rouge
Parish (“Sheriff Gautreaux”), has filed an Opposition.2
For the reasons set forth herein, the Motion to Compel3 is granted in part and denied in
part. Specifically, Sheriff Gautreaux shall respond to Interrogatories 15 and 17, as well as revised
Interrogatory 10 and revised Requests for Production 19 and 20 within ten (10) days of this Ruling
and Order. Plaintiff’s request for attorneys’ fees is denied.
I.

Background
This suit arises out of the July 5, 2016 shooting of Alton Sterling and the subsequent

protests that occurred in Baton Rouge, Louisiana on July 8-10, 2016. Plaintiff alleges that while
participating in a peaceful protest on July 10, 2016 near the intersection of East Boulevard and
France Street, he was “brutally attacked and beaten,” 4 “arrested on charges of simple obstruction

1

R. Doc. 137.

2

R. Doc. 138.

3

R. Doc. 137.

4

R. Doc. 60, Third Amended, Supplemental and Superseding Complaint for Damages for Deprivation of Civil Rights,
¶¶ 13-15. See also, R. Doc. 60, ¶ 51 (“The officers threw Max Geller to the ground, slammed his head into the ground,
held him down and kicked Mr. Geller.”)

1

of a highway of commerce, per La. R.S. 14:97 and resisting an officer, per La. R.S. 14:108,”5 and
denied medical care. Plaintiff asserts claims pursuant to, inter alia, 42 U.S.C. §§ 19836 and
1985(3),7 and 1986.8
The Court previously deferred ruling on Sheriff Gautreaux’s defense of qualified immunity
and allowed limited discovery regarding the identity of the officers involved in the alleged
underlying constitutional violations.9 During an August 7, 2019 status conference, Plaintiff sought
to compel discovery targeted to Plaintiff’s conspiracy claim.10 The Court granted Plaintiff leave
to propound written discovery “narrowly targeted to plaintiff’s conspiracy claim; specifically,
times, places, and other circumstances of agreements preceding the alleged violation of Mr.

5

R. Doc. 60, ¶ 55.

6

See, R. Doc. 60, ¶¶ 84-106 (asserting violations of the First, Fourth, Eighth, and Fourteenth Amendment pursuant to
42 U.S.C. § 1983).
7

See, R. Doc. 60, ¶¶ 107-115 (asserting a claim against all defendants for conspiracy to deprive Plaintiff of his civil
rights in violation of 42 U.S.C. § 1985(3)).
See, R. Doc. 60, ¶¶ (asserting a claim against all defendants for neglecting to prevent deprivation of Plaintiff’s civil
rights).
8

See, R. Doc. 114, pp. 23-24 (discussing Plaintiff’s allegations that he was dragged near a swat vehicle and struck in
the head by a rifle butt or another blunt object and explaining that “THUS, IT IS CONCEIVABLE THAT THE
OTHER, QUOTE, "POLICE OFFICERS," CLOSED QUOTE, THAT WERE REFERRED TO EARLIER, AND
SPECIFICALLY ONE THAT STRUCK A PLAINTIFF IN THE HEAD WITH A RIFLE BUTT OR OTHER BLUNT
OBJECT, MIGHT BE AN EBRSO DEPUTY.”); p. 22 (“THE COURT IS GOING TO ALLOW LIMITED WRITTEN
DISCOVERY ON THE NARROW ISSUE OF WHETHER ANY EBRSO DEPUTY WAS INVOLVED IN THE
PLAINTIFF'S ARREST OR IN THE AFTERMATH OF HIS ARREST.”); Geller, 17-324, R. Doc. 111, p. 2 (“while
Plaintiff has adequately pled a single policy decision that may have been the moving force of constitutional violations
and that was made with deliberate indifference, limited discovery is needed to determine if Plaintiff can plead an
underlying constitutional violation by an individual EBRSO deputy. Discovery will be limited to written discovery on
the narrow issue of which individual EBRSO deputies (if any) were involved in the alleged constitutional violations.”).
9

While counsel for Plaintiff recognized that Plaintiff’s conspiracy claim had been previously dismissed, counsel
correctly pointed out that the Court has also stated Plaintiff could have an opportunity to amend. See, R. Doc. 114, p.
63:7-12 (“WHILE PLAINTIFF HAS ALLEGED EVIDENCE OF A CONSPIRACY AND A CONSIDERABLE
AMOUNT OF PARALLEL CONDUCT, HE HAS FAILED TO ALLEGE THE TIME, PLACE AND
CIRCUMSTANCES IN WHICH THE AGREEMENTS -- THE AGREEMENT TOOK PLACE AND WITHOUT
MORE PLAINTIFF’S CONSPIRACY CLAIM FAILS.”); p. 71:1-8 (“TO THE EXTENT THE COURT HAS
DISMISSED ANY CLAIMS, THE COURT WILL ACT IN ACCORDANCE WITH WISE JUDICIAL PRACTICE
AND GIVE PLAINTIFF AN OPPORTUNITY TO AMEND HIS COMPLAINT. I DO WANT TO REMIND BOTH
SIDES OF THEIR RULE 11 OBLIGATIONS. THIS CASE IS VERY COMPLEX AND REQUIRES DETAILED
ANALYSIS OF MOTIONS, SO I ASK BOTH SIDES TO HAVE A GOOD FAITH BASIS FOR DOING
ANYTHING THAT THEY DO IN THE NEXT ROUND.”).
10

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Geller’s constitutional rights and the identification of officers actually physically involved in the
alleged underlying constitutional violations.”11
II.

Law and Analysis
A. The Motion to Compel is Granted as to Interrogatories 15 and 17;
Interrogatories 1, 7, and 10, Requests for Production 19, 20, and 21 Are Not
Within the Scope of Allowable Discovery at this Stage; Sheriff Gautreaux
Shall Also Respond to Revised Interrogatory 10 and Revised Requests for
Production 19 and 20.
“Unless otherwise limited by court order, the scope of discovery is as follows: Parties may

obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense
and proportional to the needs of the case, considering the importance of the issues at stake in the
action, the amount in controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit. Information within this scope of
discovery need not be admissible in evidence to be discoverable.”12 Here, the Court has limited
discovery to narrow and specific issues.13 Accordingly, while the scope of discovery is generally
“construed broadly to encompass ‘any matter that bears on, or that reasonably could lead to other

R. Doc. 133, p. 11. During the August 7, 2019 status conference, the Court explained that “the only area for further
discovery regarding plaintiff’s conspiracy claim is discovery into the existence and specifics of an agreement.” R.
Doc. 133, p. 8.
11

12

Fed. R. Civ. P. 26(b)(1).

As stated above, this Court previously deferred ruling on Sheriff Gautreaux’s assertion of qualified immunity to
allow limited discovery. See, Zapata v. Melson, 750 F.3d 481, 485 (5th Cir. 2014) (“[T]his court has established a
careful procedure under which a district court may defer its qualified immunity ruling if further factual development
is necessary to ascertain the availability of that defense….a district court must first find that the plaintiffs [sic]
pleadings assert facts which, if true, would overcome the defense of qualified immunity….After the district court finds
a plaintiff has so pleaded, if the court remains unable to rule on the immunity defense without further clarification of
the facts, it may issue a discovery order narrowly tailored to uncover only those facts needed to rule on the immunity
claim.”) (internal citations and quotations omitted).
13

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matters that could bear on, any issue related to the claim or defense of any party,’”14 Plaintiff’s
instant Motion to Compel must be considered in light of this Court’s previous grant of leave to
propound written discovery “narrowly targeted to plaintiff’s conspiracy claim; specifically, times,
places, and other circumstances of agreements preceding the alleged violation of Mr. Geller’s
constitutional rights and the identification of officers actually physically involved in the alleged
underlying constitutional violations.”15
Plaintiff seeks to compel responses to five interrogatories and three requests for production.
Sheriff Gautreaux has objected to each of these discovery requests “as beyond the scope of limited
discovery ordered by this Court.”16 The disputed discovery requests are as follows:
Interrogatory No. 1:
Describe Sheriff Gautreaux and the East Baton Rouge Sheriff’s
Office’s duties and responsibilities in coordinating or participating
in other law enforcement agency response to the Baton Rouge
Protests under the East Baton Rouge Parish’s Emergency
Operations Plan.
Interrogatory No. 7:
Describe how other law enforcement agencies or officers
coordinated their response to the Baton Rouge Protests with Sheriff
Gautreaux or the East Baton Rouge Sheriff’s Office.
Interrogatory No. 10:
For the time period between noon on July 9, 2016 through 2 a.m. on
July 10, 2016, identify and describe any communications (whether
in person, on radio transmission, e-mail, text message or other form
of communication) between Sheriff Gautreaux and any official,
officer or supervisor of the Louisiana State Police, City of Baton
14

Tadlock v. Arctic Cat Sales, Inc., Civil Action No. 15-766, 2017 WL 1032516, at * 3 (M.D. La. March 17, 2017)
(quoting Fraiche v. Sonitrol of Baton Rouge, Civil Action No. 08-392, 2010 WL 4809328, at *1 (M.D. La. Nov. 19,
2010)) (quoting Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir. 1991); Fed. R. Civ. P. 26(b)(1)).
R. Doc. 133, p. 11. During the August 7, 2019 status conference, the Court explained that “the only area for further
discovery regarding plaintiff’s conspiracy claim is discovery into the existence and specifics of an agreement.” R.
Doc. 133, p. 8.
15

16

See, R. Doc. 137, pp. 2-4; R. Doc. 137-3.

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Rouge, the Parish of East Baton Rouge, or the Baton Rouge Police
Department, including but not limited to then-Colonel Edmonson,
then-Mayor/President Holden and then-BRPD Chief Dabadie, about
or concerning threatened, potential or actual protests at the
intersection of East and France or other Baton Rouge Protests.
Interrogatory No. 15:
Please identify any and all commands, orders, instructions, briefings
or directions given by Sheriff Gautreaux or by the East Baton Rouge
Sheriff’s Office directing other law enforcement officers to charge
Max Geller with violating La. R.S. 14:97 and La. R.S. 14:108 and
identify any and all documents or communications related to the
commands, orders, instructions, or directions.
Interrogatory No. 17:
Who gave the order to prepare any pre-printed Affidavits of
Probable Cause and who carried out that order?
Request for Production No. 19:
Produce any and all documents or communications in which Sheriff
Gautreaux or any other East Baton Rouge Sheriff Officer is involved
in directing other law enforcement officers for the time period of
Noon on July 10, 2019 until 12:00 Midnight, including without
limitation directions related to the protests at the intersection of East
and France.
Request for Production No. 20:
Any and all documents that reference, describe or record any
meetings with or between Sheriff Gautreaux, the East Baton Rouge
Sheriff’s Office, the City of Baton Rouge, the Baton Rouge Police
Department, the Mayor’s Office or any agency or sub-division
thereof, and other law enforcement officials or entities regarding
planning for political protests or the law enforcement response to
the Baton Rouge Protests in July 2016.
Request for Production No. 21:
Any and all correspondence between Louisiana State Trooper Jacob
Brown and Sheriff Gautreaux or the East Baton Rouge Sheriff’s
Office.
Plaintiff contends that “[e]ach of the disputed interrogatories and requests for production
is relevant to the ‘times, places, and other circumstances of agreements preceding the alleged
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violation of Mr. Geller’s rights,’ permitted by this Court.”17 In opposition to the Motion to
Compel, Sheriff Gautreaux argues that he has “responded to Plaintiff’s interrogatories that were
narrowly tailored to determine the existence of any agreement by Sheriff Gautreaux to violate the
Baton Rouge Protestors including Mr. Geller’s constitutional rights. The interrogatories and
request for production in dispute are not narrowly targeted to the existence and specifics of an
agreement to violate the protestors’ constitutional rights.”18
The Court finds that Interrogatories 15 and 17 are fairly within the scope of discovery
previously allowed. Accordingly, the Motion to Compel is granted with respect to Interrogatories
15 and 17.19
Conversely, the Court finds that Interrogatories 1, 7, and 10, as well as Requests for
Production 19, 20, and 2120 are not narrowly tailored to the times, places, and other circumstances

R. Doc. 137-1, p. 4. Plaintiff alleges that defendants “took concrete steps to enter into an agreement in July 2016
to unlawfully assault, arrest, detain and imprison Baton Rouge Protestors, such as Max Geller, knowing Defendants
lacked probable cause to do so” and that “Defendants’ conspiracy to deprive Geller of his civil rights is evidenced by
their use of a pre-filled out Affidavit of Probable Cause for Mr. Geller and many other protestors, charging Mr. Geller
and many other protestors with violating La. R.S. 14:97, and the excessive and militaristic response to the Baton
Rouge protests by law enforcement officers from the Baton Rouge Police Department, East Baton Rouge Parish
Sheriff’s Office and the Louisiana State Patrol.” R. Doc. 60, ¶¶ 110 & 114. See also, R. Doc. 60, ¶ 115 (“Defendants
conspired individually, collectively and through their employees, officers and agents to arrest and charge Max Geller
pursuant to ordinances and statutes that are unconstitutionally vague, are unconstitutional as applied and prohibit
conduct that is protected by the United States Constitution, including, but not limited to, La. R.S. 14:97.”).
17

18

R. Doc. 138, p. 3.

Plaintiff argues that the “Court should permit further and broader discovery regarding the agreements with other
law enforcement agencies, the meetings, orders and directions, which Sheriff Gautreaux has denied.” R. Doc. 137-1,
p. 5. Plaintiff contends such discovery should be allowed because Sheriff’s Gautreaux’s sworn assertions in a related
proceeding are inconsistent with Sheriff’s Gautreaux’s discovery responses in this suit. Per an affidavit, Sheriff
Gautreaux averred that he “made a request of the [Louisiana Sheriff’s Association] Emergency Task Force for
assistance with anticipated crowd control needs associated with protests arising out of an earlier shooting death…”
and that in response to the request “several Sheriffs offered personnel and/or equipment to assist with the preservation
of peace and order within East Baton Rouge Parish under the direction of local agencies.” See, R. Doc. 137-4. The
Court does not find Sheriff Gautreaux’s affidavit (attesting to general planning and crowd control) to be inconsistent
with Sheriff Gautreaux’s discovery responses in this suit asserting that he did not have any agreements with other law
enforcement agencies regarding decisions to arrest protestors for violating La. R.S. 14:97, agreements to use preprinted affidavits of probable cause, or agreements to use force to arrest the Baton Rouge Protestors. See, R. Doc.
137-1, p. 5.
19

Request for Production 21 requests “[a]ny and all correspondence between Louisiana State Trooper Jacob Brown
and Sheriff Gautreaux or the East Baton Rouge Sheriff’s Office.” Plaintiff has alleged that “Louisiana State Police
Trooper Jacob R. Brown, who is a resident of the State of Louisiana, who is sued individually, used excessive and
20

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of agreements preceding the alleged violation of Mr. Geller’s constitutional rights and therefore
denies Plaintiff’s Motion to Compel with respect to these requests. Plaintiff alleges that he was
arrested near the intersection of East Boulevard and France Street on July 10, 2016 around 6:00
p.m.21 and that “Defendants’ conspiracy to deprive Geller of his civil rights is evidenced by their
use of a pre-filled out Affidavit of Probable Cause for Mr. Geller and many other protestors,
charging Mr. Geller and many other protestors with violating La. R.S. 14:97, and the excessive
and militaristic response to the Baton Rouge protests by law enforcement officers from the Baton
Rouge Police Department, East Baton Rouge Parish Sheriff’s Office and the Louisiana State
Patrol.”22

These interrogatories, however, seek much broader information. In order to narrowly

tailor Plaintiff’s discovery requests, the Court will reform Interrogatory 10 as follows:
For the time period between noon on July 9, 2016 through 2 a.m. on
July 10, 2016, identify and describe any communications (whether
in person, on radio transmission, e-mail, text message or other form
of communication) between Sheriff Gautreaux and any official,
officer or supervisor of the Louisiana State Police, City of Baton
Rouge, the Parish of East Baton Rouge, or the Baton Rouge Police
Department, including but not limited to then-Colonel Edmonson,
then-Mayor/President Holden and then-BRPD Chief Dabadie, about
or concerning the availability, preparation, or use of pre-printed
Affidavits of Probable Cause in response or relation to threatened,
potential or actual protests at the intersection of East and France.
In keeping with revised Interrogatory 10, the Court will also revise Request for Production
19 as follows:
Produce any and all documents or communications in which Sheriff
Gautreaux or any other East Baton Rouge Sheriff Officer is involved
in directing other law enforcement officers for the time period of
unwarranted force in tackling, assaulting, restraining and battering Max Geller on July 10, 2016.” R. Doc. 60, ¶ 34.
Accordingly, it does not appear that discovery related to Jacob Brown is narrowly tailored to Plaintiff’s conspiracy
claim and, because Jacob Brown has been identified, is not narrowly tailored to “identification of officers actually
physically involved in the alleged underlying constitutional violation.”
21

R. Doc. 60, ¶¶ 41 & 43.

22

R. Doc. 60, ¶ 114.

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Noon on July 10, 2019 until 12:00 Midnight related to the protests
at the intersection of East and France.
Finally, the Court will revise Request for Production 20 as follows:
Any and all documents that reference, describe or record any
meetings with or between Sheriff Gautreaux, the East Baton Rouge
Sheriff’s Office, the City of Baton Rouge, the Baton Rouge Police
Department, the Mayor’s Office or any agency or sub-division
thereof, and other law enforcement officials or entities regarding
availability, preparation, or use of pre-printed Affidavits of Probable
Cause in response or relation to threatened, potential or actual
protests at the intersection of East and France.
B. Plaintiff’s Request for Attorneys’ Fees is Denied
In addition to seeking to compel Sheriff Gautreaux’s responses to certain written discovery
requests, Plaintiff also requests an award of fees and expenses based on “Sheriff Gautreaux’s
unwarranted objections and unsupported denials.”23 Because the Court has denied in part and
granted in part the Motion to Compel, certain of Sheriff’s Gautreaux’s objections were
substantially justified and the Court finds that an award of fees and expenses here would be
unjust.24 Accordingly, the Court denies Plaintiff’s request for attorneys’ fees.
III.

Conclusion
For the reasons set forth herein, IT IS HEREBY ORDERED that the Motion to Compel

Discovery Responses from Sheriff Sid. J. Gautreaux, III and Motion for Award of Attorneys’ Fees
(the “Motion to Compel”)25 is GRANTED IN PART AND DENIED IN PART.
IT IS HEREBY ORDERED that defendant, Sid. J. Gautreaux, III, Sheriff of East Baton
Rouge Parish (“Sheriff Gautreaux”), shall respond to Interrogatories 15 and 17, as well as revised

23

R. Doc. 137-1, p. 5.

24

See, FRCP 37(a)(5)(A)(ii) & (iii).

25

R. Doc. 137.

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Interrogatory 10 and revised Requests for Production 19 and 20 within ten (10) days of this Ruling
and Order.
IT IS FURTHER ORDERED that Plaintiff’s request for attorneys’ fees is DENIED.
Signed in Baton Rouge, Louisiana, on November 6, 2019.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

9